SB v Roads and Traffic Authority

[2010] NSWADT 255

CITATION:	SB v Roads and Traffic Authority [2010] NSWADT 255
DIVISION:	General Division
PARTIES:	APPLICANT SB RESPONDENT Roads and Traffic Authority
FILE NUMBER:	093304
HEARING DATES:	16 June 2010
SUBMISSIONS CLOSED:	30 June 2010
DATE OF DECISION:	27 October 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Privacy –Health information – health privacy principle - collection
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Road Transport (Driver Licensing) Act 1998 Road Transport (Driver Licensing) Regulation 2008
CASES CITED:	NX v Office of the Director of Public Prosecutions [2005] NSWADT WL v Randwick City Council [2007] NSWADTAP 58
REPRESENTATION:	APPLICANT In person RESPONDENT S-J Morris, solicitor
ORDERS:	The Tribunal determines to take no further action on this matter.

1 In these reasons the name of the applicant has been anonymised so as to preserve the privacy of his personal affairs. The Applicant is referred to as SB.

Background

2 The parties are in general agreement in regard to the background and issues in regard to this matter.

3 The Roads and Traffic Authority (“the RTA”) is responsible for administering the driver licensing system established by the Road Transport (Driver Licensing) Act 1998 (“the RT(DL) Act”). As part of administering the driver licensing system, the RTA requires drivers who are 75 years or older to undergo a medical fitness examination each year. Shortly before a driver's 75th birthday, the RTA sends the driver a Medical Report Form, together with an accompanying letter and brochure. The Medical Report Form is to be completed by the driver's general practitioner or appropriate specialist and returned to the RTA.

4 The applicant was sent a Medical Report Form consistently with the RTA's practices and he returned it to the RTA in October 2009.

5 In August 2009, the applicant complained to the RTA that the requirement to return the Medical Report Form to the RTA was a breach of the Health Records and Information Privacy Act 2002 (“the HRIPA”) because:

"Invasion of privacy, access of personal medical records confidential to my physician and unnecessary for my fitness to drive by the RTA; Potential disclosure to unknown persons."

6 The RTA conducted an internal review of the applicant's complaint and concluded that it had not breached the HRIPA.

7 The applicant filed an application with this Tribunal seeking a review of the RTA's decision. In that application, he complained that the RTA's conduct was a breach of HPPs 1(b), 2(a) and 2(b). He has asked the Tribunal to make the following orders:

a) Withdrawal of Medical Report Form 45070085 and its substitution with the Medical Certificate, as per the model in Appendix 2.1 of "Assessing Fitness to Drive."
b) Destruction of his personal medical information contained in the Medical Report Form submitted on 10/10/2009.
c) Destruction of the medical information contained in the Medical Report Form of all other drivers.

8 Section 20 of the RT(DL) Act, provides:

20 Driver licensing system
(1) The regulations are to provide for a system of licensing drivers of motor vehicles that are used on roads or road related areas that:
(a) provides a means of authorising the driving of motor vehicles on roads and road related areas, and
...
(2) Without limiting the scope of regulations under subsection (1), the regulations may:
…
(v) require persons who are:
(i) applicants for driver licences or renewal or variation of driver licences, and
(ii) holders of driver licences,
to submit to tests or retesting or medical or other examinations for the purpose of assessing fitness to hold or continue to hold a driver licence, or a varied driver licence, ...

9 Clause 50 of the Road Transport (Driver Licensing) Regulation 2008 (“the RT(DL) Regulation”) provides for tests and medical examinations of licensed drivers.

Road Transport (Driver Licensing) Regulation 2008
50 Tests and medical examinations of licensed drivers
(1) The Authority may, by notice in writing, require the holder of a driver licence, within a time specified in the notice:
(a) to submit to tests of the holder’s knowledge of safe driving practices and road law, or
(b) to submit to tests or assessments of driving ability, or
(c) to undergo a medical examination, conducted in accordance with Assessing Fitness to Drive, by a medical practitioner or allied professional practitioner, or produce evidence of compliance with the medical standards set out in that publication, to determine the holder’s medical fitness to hold a driver licence, or a licence of a particular class, or
(d) to attend a specified medical practitioner or allied professional practitioner for the purpose of that examination.
(2) The Authority may require the holder of a driver licence to provide to it any documents relevant to the holder’s medical fitness to hold a driver licence.
(3) The Authority must accept, for the purposes of this clause, a certificate, in a form approved by the Authority, of the results of a medical examination conducted in another jurisdiction if that examination otherwise complies with this clause.

10 Clause 50(1)(c) authorises the RTA to require a driver to undergo a medical examination to determine the holder’s medical fitness to hold a driver’s licence. The assessment is to be conducted in accordance with medical standards set out in Assessing Fitness to Drive (“the AFTD”), published by Ausroads Inc and approved by the Australian Transport Council: clause 4 of the RT(DL) Regulation.

11 The applicant does not dispute that the RTA has authority to require a driver to undergo a medical examination to establish fitness to drive. However, the applicant argues that the RT(DL) Regulation cannot be read to authorise the RTA to collect the information obtained as a result of a medical examination.

Assessing Fitness to Drive

12 The AFTD has three parts. Part A contains general information, describing the licensing process and the respective roles and responsibilities as between the driver, the health professional and the Driver Licensing Authority. Part B sets out the medical standards for private and commercial vehicle drivers licence holders. Part C contains appendices, including the regulatory requirements for driver testing, a model medical certificate and associated forms.

13 The purpose of the AFTD is expressed at [1.1]:

“The primary purpose of this publication is to increase road safety in Australia by assisting health professionals to:
- assess the fitness to drive of their patients in a consistent and appropriate manner based on current medical evidence
- promote the responsible behaviour of their patients having regard to their medical fitness
- conduct medical examinations for the licensing of drivers as required by State and Territory Driver Licensing Authorities
- make recommendations regarding conditional licences
- recognise the extent and limits of their professional and legal obligations with respect to reporting fitness to drive

14 Health professionals are given guidance in satisfying these five requirements in Part B of the AFTB, “Medical Standards”. These guidelines set medical standards to be applied in relation to all licence types against 23 conditions or diseases.

15 AFTD contains recommendations for the collection of medical information. Relevantly, AFTD provides:

3.3.1 When conducting an assessment at the request of a Driver Licensing Authority
When conducting an assessment…the key form is the Medical Certificate . This form certifies the patient’s fitness (or otherwise) to drive and is the mechanism for communication between the health professional and the Driver Licensing Authority. It should be completed with details of any medical criteria NOT met as well as details of recommended restrictions and monitoring requirements for a conditional licence. Medical information not relevant to the patient’s fitness to drive should not be included on this form for privacy reasons.
The Driver Licensing Authority may provide two additional forms to guide the examination process. These include a Patient Questionnaire and a Clinical Examination Proforma . These forms are designed to facilitate the examination process and provide a standardised recording format for the health professional – they should generally not be returned to the Driver Licensing Authority.
3.3.3 Patient Questionnaire (Appendix 2.2)
This self-administered questionnaire is a screening tool to help identify conditions that might affect safe driving ability …The results of the patient questionnaire will guide the clinical examination. It should be filed in the patient’s history and not passed to the Driver Licensing Authority.
3.3.4 Clinical Examination Proforma (Appendix 2.3)
The model Clinical Examination Proforma is another tool designed to help guide the examination process. It provides a standard format for recording the results of the examination that should then be filed in the patient’s history… The completed Clinical Examination Proforma is generally not to be forwarded to the Driver Licensing Authority for reasons of privacy. If a Driver Licensing Authority wishes to obtain the Clinical Examination Proforma as a matter of routine, this should follow discussions with the State and Commonwealth Privacy Commissioners and the relevant State/Territory branch of the Australian Medical Association.

16 The RTA submitted that there is nothing in the AFTD which prohibits a Driver Licensing Authority from routinely requiring clinical information to be provided to it. This is contemplated by [3.3.4] of the AFTD. Instead, the AFTD suggests a model which deals with the privacy issues arising from the collection of medical information. It highlights the need to consider privacy issues if the licensing authority has decided to depart from that model. The RTA is of the view that it cannot be satisfied that the medical standards provided for in the AFTD have been properly applied by the doctor signing a certificate, because of the frequency with which errors occur.

17 The RTA provided the Tribunal with a statement of Paul Vaessen, Manager, Licence Review Unit of the RTA (“the LRU”). The LRU is comprised of two units; the Medical Unit and the Traffic Unit. The Medical Unit is responsible for the administration of driver licences involving medical related fitness to drive matters. The Traffic Unit is responsible for the administration of driver licences where traffic infringements occur. In both cases, the role of the unit is to monitor and implement changes to the status of driver licences in accordance with the RTA’s statutory functions.

18 Mr Vaessen’s statement provides details of the process by which the driver is assessed for medical fitness. The health practitioner is required to assess the driver against the criteria in the AFTD. Once the form is completed, the health practitioner certifies that the driver is “fit” or “unfit” to drive. The LRU checks the forms for inconsistencies and anomalies and matters that require follow up action. Mr Vaessen states that doctors are not all thoroughly conversant with the AFTD standards, nor do they all apply the standards correctly. Of approximately 500,000 medical report forms which are sent to drivers each year, Mr Vaessen estimates that 5% may require some follow up from the LRU, such as:

- arranging for an occupational therapist to conduct a driving assessment;
- ensuring that the appropriately qualified individual (generally a specialist) has assessed the driver as required by the AFTD;
- considering whether the doctor’s answers to questions 3 to 10 suggest a new diagnosis that requires review; or
- ensuring the vision test has been correctly applied and that the driver’s level of vision meets the standards set out in the AFTD.

19 The applicant submits that the AFTD emphasises the importance of protecting the driver’s privacy. By not following these recommendations, the applicant argues that the RTA is collecting excessive information not relevant to its licensing decisions. Instead of using the Medical Certificate recommended, it requires a driver to submit the Medical Report Form completed by a health professional that is closely modelled on the Clinical Examination Proforma in 3.3.4 of the AFTD. This results in medical information being submitted to the RTA.

20 The applicant contends that the collection of this information constitutes a breach of HPP(2)(a) and HPP (2)(b) in that the information collected is both excessive and intrusive. He also claims that use of the Medical Report is a breach of HPP(1)(b) in that the information collected is not reasonably necessary for the purpose of licensing. The applicant contends that the AFTD clearly envisages that the Driver Licensing Authorities will accept certification by a health professional of fitness to drive, using the Medical Certificate form, and places responsibility for the consequences of the assessment on the doctor.

21 The RTA submits that while it might appear on one reading of clause 50(1)(c) that it is the medical practitioner who certifies the applicant as fit to drive, on the correct construction of clause 50(1)(c), it is the RTA which makes the decision on a person’s fitness to drive, having regard to the results of the medical examination conducted by the medical practitioner. The RTA submits that section 20(1) of the RT(DL) Act speaks of the RTA authorising the driving of motor vehicles, while the medical examination is merely an assessment of fitness. The same terminology is picked up in the AFTD, where the health professional conducts an assessment of medical fitness, while the licensing authority decides whether to grant a licence based on that assessment. The RTA submits, that the Regulation should be read consistently with the RL(DL) Act, which draws a distinction between the process of assessment and the decision making process.

22 The RTA may also require the holder of a driver licence to provide it with “any documents relevant to the holder’s medical fitness to hold a driver’s licence”: clause 50(2). It argues that this suggests that the RTA may conduct an independent review and assessment of the evidence of a medical practitioner’s assessment of fitness. The RTA submitted that clause 50(1)(c) allows it to determine whether a licence holder is medically fit to hold a drivers licence of a particular class. Determining fitness to drive requires knowledge of a driver’s relevant medical conditions, and the criteria which govern the holding of certain categories of driver licence. The RTA submits that only the RTA could have both these categories of knowledge, obtained with the assistance of the information supplied by the medical practitioner. For these reasons, the RTA submitted that the correct view of clause 50(1)(c) is that the reference to “determine the holder’s fitness to drive” in clause 50(1)(c) refers to a determination to be reached by the Licensing Authority.

Consideration

23 The HRIPA regulates use of health information by public sector agencies and private organisations vis a vis the Health Privacy Principles, contained in Schedule 1. “Health information” is defined in section 6 of the HRIPA, which provides:

In this Act, health information means:
(a) personal information that is information or an opinion about:
(i) the physical or mental health or a disability (at any time) of an individual, or
(ii) an individual’s express wishes about the future provision of health services to him or her, or
(iii) a health service provided, or to be provided, to an individual, or
(b) other personal information collected to provide, or in providing, a health service, or
(c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual’s body parts, organs or body substances, or
(d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of any sibling, relative or descendant of the individual,
but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.

24 The RTA collects, holds or uses health information within the meaning of section 11(1) of the HRIPA, which provides:

(1) This Act applies to every organisation that is a health service provider or that collects, holds or uses health information.
Note. The term organisation means a public sector agency or a private sector person.
(2) An organisation to whom or to which this Act applies is required to comply with the Health Privacy Principles and with any health privacy code of practice or provision of Part 4 that is applicable to the organisation.
(3) An organisation must not do any thing, or engage in any practice, that contravenes a Health Privacy Principle or a health privacy code of practice or a provision of Part 4 in respect of which the organisation is required to comply.
Note. The application of Health Privacy Principles and the provisions of Part 4 may be modified by health privacy codes of practice. See section 39.

25 The information collected in the Medical Report Form is health information within the meaning of section 6(a)(i) and (iii) of the HRIPA. Accordingly, the RTA is required to comply with the HPPs in Schedule 1 of the HRIPA.

26 The applicant alleges that the collection of medical information in the Medical Report Form constitutes a breach of HPP(1)(b) and HPP(2)(a) and (2)(b).

27 HPP 1 provides:

1 Purposes of collection of health information
(1) An organisation must not collect health information unless:
(a) the information is collected for a lawful purpose that is directly related to a function or activity of the organisation, and
(b) the collection of the information is reasonably necessary for that purpose.
(2) An organisation must not collect health information by any unlawful means.

28 “Lawful purpose” in HPP 1 refers to “a purpose that is authorised, as opposed to not forbidden, by law”: NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 at [21]-[22]; WL v Randwick City Council [2007] NSWADTAP 58 at [45] and [47].

29 Clause 50(1)(c) of the RT(DR) Regulation provides that the RTA may require a licence holder to “undergo a medical examination, conducted in accordance with Assessing Fitness to Drive, by a medical practitioner or allied professional practitioner, or produce evidence of compliance with the medical standards set out in that publication, to determine the holder’s medical fitness to hold a driver licence, or a licence of a particular class.” It is not automatically apparent whether the assessment of the holder’s fitness is to be made by the doctor or the RTA. Clause 50(2) provides that “The Authority may require the holder of a driver licence to provide to it any documents relevant to the holder’s medical fitness to hold a driver licence”. Accordingly, the RTA is empowered to collect health information relating to licence holders’ medical fitness to drive pursuant to clause 50 of the RT(DR) Regulation.

30 The purpose for the collection by the RTA is to assess the medical fitness of persons who hold drivers licences for the purpose of road safety. This is a lawful purpose. The issue then, is whether the collection is reasonably necessary for that purpose.

31 The expression "reasonably necessary" must take on its natural meaning. The legislature has used this expression rather than other potential expressions such as "necessary” or “desirable" or "absolutely necessary” or “essential” for the specified purpose.

32 The meaning of the expression does not appear to have been considered for the purposes of this legislation. The online Macquarie dictionary defines “reasonably” as:

reasonable
adjective 1. endowed with reason.
2. agreeable to reason or sound judgement: a reasonable choice.
3. not exceeding the limit prescribed by reason; not excessive: reasonable terms.
4. moderate, or moderate in price: the coat was reasonable but not cheap.
–reasonableness, reasonability, noun
– reasonably , adverb

33 The online Macquarie Dictionary defines the expression `necessary’ as meaning, inter alia, ‘that cannot be dispensed with’ ‘indispensable, or requisite’.

34 By contrast in the same Dictionary the expression ‘essential’ is defined, inter alia, as ‘absolutely necessary’.

35 It follows that the expression "reasonably necessary" as a qualification of "necessary", is meant to be something less than "essential".

36 In my view, while the test is an objective one, the belief of the RTA as to whether or not the collection is reasonably necessary for the purpose is also relevant.

37 When completing the form, the doctor is instructed to complete only the relevant sections of the form, so that where medical information is not relevant to a person’s fitness to drive, the doctor need not include it in the form.

38 Mr Vaessen gave evidence that the RTA considers it reasonably necessary for the RTA to collect the detailed information in order to assess the medical fitness to drive of the licence holder. Mr Vaessen’s evidence established that the AFTD provides for a detailed and complex set of criteria which are used to assess fitness to drive. Medical fitness is one component of the assessment. Other factors to be considered include:

- whether the driver has undertaken any required extra medical tests for the type of licence held;
- whether the driver’s fitness is required to be assessed by a specialist;
- whether the driver’s medical condition is required to be assessed by a specialist.

39 The assessment requires both knowledge of medical conditions and a comprehensive understanding of the AFTD. The RTA has established a process of Registry staff and the Licence Review Unit checking the Medical Report Forms in an effort to ensure that the AFTD standards are applied. Ensuring that only medically fit drivers hold a licence is a critical aspect of ensuring road safety. The RTA bears the ultimate responsibility for assessing fitness to drive.

40 I agree that these are factors that are relevant considerations in determining the question of whether or not the information collected is reasonably necessary for the purpose.

41 I am satisfied on the material before me that it is plausible that the collection of the information in issue is likely to be needed to achieve the purpose. It follows in my view that the information collected is reasonably necessary for the purpose.

42 HPP2 provides:

2 Information must be relevant, not excessive, accurate and not intrusive
An organisation that collects health information from an individual must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:
(a) the information collected is relevant to that purpose, is not excessive and is accurate, up to date and complete, and
(b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

43 Mr Vaessen set out in detail why each of the questions on the Medical Report Form is relevant to the RTA’s assessment of whether a driver is medically fit to hold a particular category of licence. The RTA contends that the collection of the information is not excessive, in light of its responsibility to ensure that the AFTD standards are properly applied.

44 As to the requirement that the information is “accurate, up to date and complete”, the RTA submitted that it has taken the best possible path by ensuring that it collects the information from the driver’s choice of medical practitioner and that the driver is part of the collection process.

45 The RTA submitted that the collection of health information is not an unreasonable intrusion into the personal affairs of drivers concerned. In assessing what is “reasonable” for the purposes of HPP2(b), the importance of the RTA’s licensing role in preventing injury or death must form part of the balancing process. The driver attends his or her own choice of doctor and is aware of the contents of the Medical Report Form, returning the form to the Registry. Registry staff use the form to update the DRIVES database. The form is sometimes reviewed by the LRU of the RTA. In either case, once the RTA has finished with the form it is securely archived. Information on the DRIVES database can only be accessed by those with an operational need to have access. Access to DRIVES can be tracked and audited and breaches of the protocols on the use of DRIVES are dealt with strictly.

46 As noted above, the medical practitioner who completes the information that is ultimately provided to the RTA is specifically advised that “Medical information not relevant to the patient’s fitness to drive should not be included on this form for privacy reasons”. The patient is at liberty to discuss these issues with their medical practitioner to ensure that irrelevant medical information is not provided. In my view, the steps taken by the RTA to ensure that information collected is not excessive and that it is accurate, up-to-date and complete are reasonable in the circumstances. In light of the fact that it is the medical practitioner, and not the RTA, who determines the extent of the information that is provided, I am also satisfied that the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates. I am also satisfied that the steps put in place by the RTA to assess the information that is provided by the medical practitioner, and to ensure that the information is adequate, are reasonable in the circumstances. The administrative process is not excessive or unreasonably intrusive given the extent of the follow-up by the LRU that is necessary as a result of the inconsistencies, anomalies and other matters that are present in the medical report forms.

Findings

47 In the circumstances of this matter I am not satisfied that the RTA is in breach of the legislation as alleged. It follows that the correct and preferable decision is to take no action on the matter.

48 However, it is my view that it would be prudent for the RTA, when it is next revising its forms, to place greater emphasis on the advice to medical practitioners that any medical information that is not relevant to the patient's fitness to drive should not be included on the form.

Orders

The Tribunal determines to take no further action on this matter.